Full Judgment Text
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PETITIONER:
JAGANNATH RAMCHANDRA NUNEKAR
Vs.
RESPONDENT:
GENU GOVIND KADAM & OTHERS
DATE OF JUDGMENT14/09/1988
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
OJHA, N.D. (J)
CITATION:
1989 AIR 475 1988 SCR Supl. (2)1063
1989 SCC Supl. (1) 55 JT 1988 (3) 662
1988 SCALE (2)679
ACT:
Representation of the People Act, 1950/Representation of
the People Act 1951/Registration of Electors Rules, 1960-
Sections 33, 32, 100(1)(c) and 116A/Section 36(7)/Rules 18,
20, 21, 21A and 22- Nomination Paper rejection of by
Returning Officer- Ground that certified copy of relevant
entry was from electoral roll that was not the latest- No
prescription requiring certified copy to state dates on
which basic roll or supplement had been published.
HEADNOTE:
The appellant, who was an elector in the Shivaji Nagar
Assembly Constituency in Pune, intended to contest the bye-
election to fill a seat in the Maharashtra Legislative
Assembly from the Jaoli Assembly Constituency in Satara
district. He applied to the Electoral Registration Officer
of the Shivaji Nagar Assembly constituency for a certified
copy of the relevant entry in the electoral roll containing
his name, specifically mentioning that he required it for
the purpose of producing it before the Returning Officer of
Jaoli constituency under section 33(5) of the Representation
of the People Act, 1951 to enable him to file his nomination
paper.
In the Shivaji Nagar assembly constituency a basic roll
of electors had been prepared prior to 31.1.1984. The name
of the appellant was entered at Sl. No. 16 of a supplement
which was published on 31.1.1984. Two more supplements were
issued subsequently. The basic roll and the supplements
together constituted one integrated electoral roll which was
published again on 29.1.1985. The certified copy, which was
furnished to the appellant on 8.1.1986, i.e., one day before
the date on which he filed his nomination paper, was a copy
made from the said integrated roll.
The Returning Officer of Jaoli constituency noted that
in the certified copy produced the latest date of
publication was given as 31.1.1984. The Returning Officer
told the appellant that since there were revisions
subsequent to 31.1.1984, he had to produce another certified
copy of the latest electoral roll at the time of secrutiny
i.e. 11 O’Clock on 11.1.1986. The appellant rushed back to
Pune and obtained another certified copy showing the latest
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PG NO 1063
PG NO 1064
date of publication as 29.1.1985, but reached the office of
the Returning Officer of Jaoli constituency at about 1 P.M.
on 11.1.1986. In the meantime, the Returning Officer had
already passed an order rejecting the nomination paper of
the appellant on the ground of non-compliance with the
provisions of sub-section (5) of section 33 and sub-section
(7) of section 36 of the 1951 Act. The appellant requested
review of the order but the Returning Officer declined
stating that he had no power of review.
The High Court dismissed the appellant’s election
petition holding: (1) that the appellant had not complied
with section 33(5) of the 1951 Act as the certified copy
produced by him was not a certified copy of the electoral
roll in force at the time of election; (2) the certified
copy produced on 11.1.1986 had been produced after the order
of rejection of the appellant’s nomination paper had been
passed, and (3) the Returning Officer had no power to
review.
Allowing the appeal it was,
HELD: (1) There is no prescription requiring the
certified copy to state the several dates on which the basic
roll or the supplement from which the copy is prepared had
been published. [1076F]
(2) The Returning Officer had acted on his own
information in rejecting the nomination paper of the
appellant, namely, that there was a revision in 1985 and
that the certified copy which had been produced was from an
electoral roll which had become defunct. If that was so, he
should have secured the necessary material from the
concerned Electoral Registration Officer and placed it
before the appellant before rejecting his nomination paper.
[1077D-E]
(3) Unless the certified copy produced before the
Returning Officer itself on the face of it showed that the
electoral roll from which a certified copy had been prepared
had been substituted by another electoral roll, the
Returning Officer was not justified in not treating the
production of the certified copy prepared on 8.1.1986 as
sufficient compliance under section 33(5) of the 1951 Act,
particularly having regard to the close proximity between
the date of preparation and the date of the production of
the certified copy. [1077F-H]
(4) Under the proviso to section 36(5) of the 1951 Act,
it is provided that in case an objection is raised by the
Returning Officer or is made by any other person the
candidate concerned may be allowed time to rebut it not
PG NO 1065
later than the next day but one following the date fixed for
scrutiny, and the Returning Officer shall record his
decision on the date to which the proceedings had been
adjourned. The Returning Officer did not choose to wait even
for a few hours on 11.1.1986 to give a chance to the
appellant to make his plea that what had been produced along
with the nomination paper was a certified copy which could
be acted upon or to produce another certified copy which in
fact he did produce at 1 P.M. on 11.1.1986 before the
Returning Officer, even before the final list of candidates
who had filed valid nomination papers, was published.
[1077B-D]
(5) Both the first certified copy and the second
certified copy were copies of the same original. Sub-section
(7) of section 36 of the 1951 Act lays down a rule of
evidence. It says that a certified copy of an entry in the
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electoral roll for the time being in force of a constituency
shall be conclusive evidence of the fact that the person
referred to in that entry is an elector for that
constituency, unless it is proved that he is subject to a
disqualification mentioned in section 16 of the 1950 Act.
[1078B-C]
(6) It is no doubt true that the electoral right is a
statutory right and a person who wishes to contest an
election should comply with the law applicable to elections
strictly. But in the instant case there is no default at all
on the part of the appellant. He had actually produced
before the Returning Officer a certified copy which he had
obtained within less than 24 hours from the Electoral
Registration Officer of the constituency where he was
residing and that he had not done anything to mislead the
Returning Officer. [1077E-F]
(7) The certified copy produced alongwith the nomination
paper satisfied the requirement of section 33(5) of 1951
Act. [1078D]
(8) The appellant who was an innocent person had been
denied the right to contest the election unreasonably. The
rejection of the nomination paper of the appellant was
improper. It follows that the election of the 1st respondent
should be declared void in view of the provisions contained
in section 100(1)(c) of the 1951 Act. [1078E-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Election Appeal No. 232
(NCE) of 1987.
From the Judgment and Order dated 17.12.1986 of the
Bombay High Court in Election Petition No. 1 of 1985.
PG NO 1066
Appellant-in-person.
A.M. Khanwilkar and A.S. Bhasme for the Respondents.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. The appellant is a person residing at
Pune in the State of Maharashtra. A bye-election was
proposed to be held on the 2nd February, 1986 to fill a seat
in the Maharashtra Legislative Assembly which had become
vacant on account of the death of the sitting member who was
representing 263 Jaoli Legislative Assembly constituency in
Satara district in the State of Maharashtra. The last date
for making nominations at the said election was the 10th
January, 1986 and the scrutiny of nomination papers was
fixed to take place on January 11, 1986. The appellant filed
his nomination paper on January 9, 1986. Since he was not
registered as an elector in the Jaoli constituency but was
an elector of the Shivaji Nagar Assembly constituency in
Pune, a certified copy of the relevant entry in the
electoral roll of the Shivaji Nagar constituency in which
his name appeared had to be filed along with his nomination
paper or had to be produced before the Returning Officer at
the time of scrutiny as provided in sub-section (5) of
section 33 of the Representation of the People Act, 1951
(hereinafter referred to as the ‘1951 Act’). Accordingly the
appellant applied to the Tahsildar, Pune city (who was also
the Assistant Electoral Registration Officer, Shivajinagar
Assembly constituency) who was the custodian of the
electoral roll in force of that constituency to furnish him
with a certified copy of the entry pertaining to him in the
electoral roll on 6th January, 1986. In that application he
specifically mentioned that he required the certified copy
for the purpose of producing it before the Returning Officer
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of the Jaoli constituency for enabling him to file his
nomination paper. The certified copy was made ready on 8th
January, 1986 and delivered to the appellant on the same day
by the Tahsildar, Pune city (Assistant Electoral
Registration Officer, Shivajinagar Assembly constituency).
The certified copy was in Marathi language. The material
part of the English translation of the said certified copy
read thus:
"247. Shivajinagar Assembly Constituency
List of Voters- 1984
Name of village: Hutatma Rajguru Health Camp.
PG NO 1067
Taluka- Pune City Distt. Pune
Mahanagar Palika Part No./Polling Centre
Ward No. 9 No 47
------------------------------------------------------------
Sl. House No. Name of the voter M/F Approximate
No. with the name of Age on
father mother or 1.1.84
husband.
------------------------------------------------------------
16. Wadar Kunekar Jagannath M 35
Housing Ramchandra
Society
Block No. 1
------------------------------------------------------------
Latest date of publication
31.1.1984
Sd/-
Electoral Registration
Officer 247, Shivajinagar.
Assembly Constituency.
Pune.
Copying Applied on 6.1.1986
Fee Ready on 8.1.1986
delivered on 8.1.1986
Copied by kale."
After obtaining the above said copy on January 8, 1986
the appellant filed his nomination paper as stated above on
the next day, i.e. on 9th January, 1986 and along with his
nomination paper he produced the certified copy obtained by
him as required by sub-section (5) of section 33 of the 1951
Act. On seeing the said certified copy the Returning Officer
of Jaoli constituency told the appellant that since it had
been noted in the certified copy that the latest day of
publication of the electoral roll in which the name of the
appellant was appearing was 31st January, 1984 he had to
bring another certified copy as there were revisions
subsequent to January 31, 1984 Acting on the suggestion made
by the Returning Officer the appellant returned to Pune
again and applied for another certified copy on the 10th
January, 1986 after the office of the Tahsildar was opened
in the forenoon. The Tahsildar told him that the certified
copy would be ready by 4.30 in the afternoon. Ultimately the
appellant was able to get that copy at 5 P.M. on 10th
January, 1986. The earliest bus available to the appellant
to leave Pune for going to the place where the Returning
PG NO 1068
Officer was taking up the work of scrutiny of nomination
papers was to start at 9 A.M. on 11th January, 1986. The
appellant reached the office of the Returning Officer at
about 1 P.M. in the afternoon on 11th January, 1986, i e.,
the date fixed for scrutiny of the nomination papers and
produced the second certified copy obtained by him before
the Returning Officer. The second certified copy was also in
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the Marathi language. The English translation of the
material part of the second certified copy reads thus:
"247. Shivajinagar Assembly Constituency
List of Voters- 1984
Name of village: Hutatma Rajguru Health Camp.
Taluka- Pune City Distt. Pune
Mahanagar Palika Part No./Polling Centre
Ward No. 9 No. 47
------------------------------------------------------------
Sl. House No. Name of the voter M/F Approximate
No. with the name of Age on
father mother or 1.1.1984
husband.
------------------------------------------------------------
16. Wadar Munekar Jagannath M/35
Housing Ramchandra
Society
Block No. 1
------------------------------------------------------------
Latest date of publication
29.1.1985
Sd/-
Electoral Registration
Officer 247, Shivajinagar.
Assembly Constituency.
Pune.
Copying Applied on 10-1-86
Paper Ready on 10-1-86
delivered on 10-1-86
Copied by kale.
PG NO 1069
TRUE COPY
Sd/-
Tehsildar-Poona City
Asstt. Electoral Registration Officer
Shivajinagar Assembly Constituency
Tal Poona City.
Sd/- 10.1.86"
It is stated by the Returning Officer that before the
appellant appeared before him on 11th January, 1986 he had
already passed an order rejecting the nomination paper of
the appellant on the ground of non-compliance with the
provisions of sub-section (5) of section 33 and sub-section
(7) of the section 36 of the 1951 Act. The English
translation of the order (which was in the Marathi language)
passed by the Returning Officer rejecting the nomination
paper of the appellant is as follows:
"I have examined this nomination paper in accordance
with section 36 of the Representation of the People Act,
1951 and my decision is as follows:
In his nomination paper the candidate Shri Jagannath
Ramchandra Nunekar, resident of Pune has mentioned his name
as being at Sl No. 16 in part No. 47 of the electoral roll
for the 247 Shivajinagar Legislative Assembly Constituency.
As evidence thereof he has submitted a certified relevant
extract from the said electoral roll published on the date
31.1.1984. Under the provisions of Sections 33(5) and 36(7)
of the Representation of the People Act, 1951 it was
essential for him to submit either the latest electoral roll
(in force as on the date 31.1.85) or the necessary part of
the roll or a certified relevant extract thereof Shri
Nunekar was given instructions to that effect at the time of
filing of the nomination paper and requested to comply with
the requirements regarding the said legal documents by the
time of scrutiny of the nomination paper, that is to say by
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11 O’Clock on the date 11.1.1986. However, the said
requirement was not complied with even till the time of the
scrutiny was over, nor did he remain present at the time of
the scrutiny. The said nomination paper is therefore
rejected.
PG NO 1070
Sd/-
Returning Officer
263, Jaoli, Vidhan Sabha
Constituency.
(Medha)
Dated: 11-1-1986"
(This translation is done by the
Chief Translator at the High Court.)
Aggrieved by the order rejecting his nomination paper
the appellant requested the Returning Officer to review his
order since he had produced another certified copy in which
the latest date of publication had been shown as 29.1.1985.
The Returning Officer declined to review his order stating
that he had no power of review and thereafter published the
final list of candidates containing the names of four
condidates who had, according to him, filed valid nomination
papers. The appellant’s name was not included in the said
final list as his nomination paper had been rejected.
Thereafter the election was held and respondent No. 1 was
declared elected. After the declaration of the result the
appellant filed Election Petition No. 1 of 1986 on the file
of the High Court of Bombay calling in question the election
of the respondent No. 1, alleging that the Returning Officer
had improperly rejected the nomination paper filed by him
and therefore the election of respondent No. 1 was liable to
be set aside on the ground mentioned in section 100(I)(c) of
the 1951 Act. Respondents No. 1 to 4 in the election
petition were the four other candidates who had filed
nomination papers at the election and respondent No 5 was
the Returning Officer. Respondents No. 1 and 5 contested the
election Petition by filing separate written statements.
They pleaded inter alia that since the certified copy of the
relevant entry of the electoral roll of the Shivajinagar
constituency in which the name of the appellant appeared was
not one prepared from the current electoral roll the
Returning Officer had rightly rejected the nomination paper
of the appellant and there was no ground to interfere with
the election of respondent No. 1. At the conclusion of the
trial, the learned Judge of the High Court who tried the
election petition dismissed the election petition filed by
the appellant holding that he had not complied with section
33(5) of the 1951 Act as the certified copy produced by him
on the 9th January, 1986 was not a certified copy of the
electoral roll in force at the time of the election, the
certified copy produced on the 11th January, 1986 had been
produced after the order of rejection of nomination paper
PG NO 1071
had been passed by the Returning Officer and the Returning
Officer had no power to review. Aggrieved by the judgment of
the learned Judge of the High Court the appellant has filed
this appeal under section 116A of the 1951 Act.
There is no dispute that a candidate whose name is found
in the electoral roll of a constituency other than the
constituency from which he is seeking election should
produce a certified copy of the electoral of the
constituency in force in which his name appears or the part
thereof or a certified copy of the relevant entry in such
electoral roll before the Returning, Officer either along
with the nomination paper or at the time of the scrutiny.
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That is the mandatory of sub-section (5) of section 33 of
the 1951 Act. Sub-section (2) of section 36 of the 1951 Act
provides that the Returning Officer shall examine the
nomination papers and shall decide all objections which may
be made to any nomination and may, either on such objection
or on his own motion, after such summary inquiry. if any, as
he thinks necessary, reject any nomination on any of the
grounds mentioned therein. One of the grounds mentioned in
that sub-section is that there has been a failure to comply
with any of the provisions of section 33 which includes the
provisions contained in sub-section (5) thereof. Sub-section
(7) of section 86 provides that for the purpose of that
section, a certified copy of an entry in the electoral roll
for the time being in force of a constituency shall be
conclusive evidence of the fact that the person referred to
in that entry is an elector for that constituency, unless it
is proved that he is subject to a disqualification mentioned
in section 16 of the Representation of the People Act. 1950
(hereinafter referred to as ‘the 1950 Act’). Sections 14 to
25A of the 1950 Act, which are in Part III thereof, provide
for the preparation, revision and maintenance of electoral
rolls for assembly constituencies. Section 15 of the 1950
Act provides that for every constituency there shall be an
electoral roll which shall be prepared in accordance with
the provisions of the 1950 Act under the superintendence,
direction and control of the Election Commission. A person
shall be disqualified for registration in an electoral roll
as provided by section 16 of the 1950 Act if he is not a
citizen of India, or is of unsound mind and stands so
declared by a competent court or is for the time being
disqualified from voting under the provisions of any law
relating to corrupt practices and other offences in
connection with elections. The name of any person who
becomes so disqualified after registration is liable to be
forthwith struck off the electoral roll in which it is
included. If the name of any person is struck off the
electoral roll of a constituency by reason of a
disqualification under clause (c) of sub-section (1) of
PG NO 1072
section 16 of the 1950 Act it shall forthwith be reinstated
in that roll if such disqualification is, during the period
such roll is in force, removed under any law authorizing
such removal. Subject to the provisions of Part III of the
1950 Act every person who is not less that 21 years of age
on the qualifying date and is ordinarily resident in a
constituency is entitled to be registered in the electoral
roll for that constituency. The expression ‘qualifying date’
is defined in clause (b) of section 14 of the 1950 Act as
the first day of January of the year in which the electoral
roll is prepared or revised. Sections 21 to 23 of the 1950
Act provide for the preparation and revision of electoral
rolls, correction of entries in electoral rolls and
inclusion of names in electoral rolls. The electoral roll
for each constituency has to he prepared in the prescribed
manner by reference to the qualifying date and shall come
into force immediately upon its final publication in
accordance with the rules made under the 1950 Act. The said
electoral roll shall unless otherwise directed by the
Election Commission for reasons to be recorded in writing,
be revised in the prescribed manner by reference to the
qualifying date before each general election of the House of
People or to the Legislative Assembly of a State; and before
each bye-election to fill a casual vacancy in a seat
allotted to the constituency; and shall be revised in any
year in the prescribed manner by reference to the qualifying
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date it such revision has been directed by the Election
Commission, provided that if the electoral roll is not
revised as aforesaid. the validity or continued operation of
the said electoral roll shall not thereby be affected. The
Election Commission may at any time, for reasons to be
recorded direct a special revision of the electoral roll for
any constituency or part of a constituency in such manner as
it may think fit. These provisions relating to the
preparation and revision of electoral rolls are contained in
section 21 of the 1950 Act. It is not necessary to refer in
detail for purposes of this case to section 22 of the 1950
Act which deals with the correction of entries in electoral
rolls and the provisions contained in section 23 of the 1950
regarding the procedure to be followed if any person whose
name is not included in the electoral roll of a constituency
wishes to get his name included in it. What are, however, to
be emphasised at this stage are section 21 of the 1950 Act
which provides that on the preparation of an electoral roll
in the prescribed manner it will come into force immediately
upon its final publication in accordance with the rules made
under the 1950 Act (vide sub-section (1) of the 1950 Act)
and the proviso to sub-section (2) of section 21 of the 1950
Act which provides that if the electoral roll is not revised
as provided in clauses (a) and (b) of sub-section (2) of
section 21 of the 1950 Act the validity or continued
operation of the said electoral roll shall not thereby be
PG NO 1073
affected. In order to implement the provisions contained in
Part III of the 1950 Act relating to the preparation and
revision of electoral rolls rules have been made under the
1950 Act and they are the Registration of Electors Rules,
1960 (hereinafter referred to as ‘the Rules’). The rules
prescribing the procedure for preparation and revision of
electoral rolls are contained in Part II of the Rules. The
electoral registration officer of a constituency which
expression includes an assistant electoral registration
officer thereof also is charged with the duties of the
preparation, revision and maintenance of an electoral roll.
After the electoral roll is prepared under the Rules and
published it can be amended in accordance with the decisions
of the electoral registration officer under rules 18, 20, 21
and 21-A of the rules. Rule 22 of the Rules provides thus:
"22. Final publication of roll.--(1) The registration
officer shall thereafter--
(a) Prepare a list of amendments to carry out his
decisions under rules 18, 20, 21 and 21A and to correct any
clerical or printing errors or other inaccuracies
subsequently discovered in the roll;
(b) publish the roll, together with the list of
amendments, by making a complete copy thereof available for
inspection and displaying a notice in Form 16 at his office;
and
(c) subject to such general or special directions as may
be given by the Election Commission supply. free of cost,
two copies of the roll as finally published, with the list
of amendments, if any, to every political party for which a
symbol has been exclusively reserved by the Election
Commission.
(2) On such publication, the roll together with the list of
amendments shall be the electoral roll of the constituency.
(3) Where the roll (hereafter in this sub-rule referred to
as the basic roll), together with the list of amendments,
becomes the electoral roll for a constituency under sub-rule
(2), the registration officer may, for the convenience of
all concerned, integrate, subject to any general or special
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directions issued by the Election Commission in this behalf,
PG NO 1074
the list into the basic roll by including the names of
electors in the list together with all particulars relating
to such electors in the relevant parts of the basic roll
itself, so however that no change shall be made in the
process of such integration in the name of any elector or in
any particulars relating to any elector as given in the list
of amendments."
In the present case there was a basic roll prepared
prior to 31.1.1984 in the Shivaji Nagar Assembly
Constituency. The name of the appellant was entered at Sl.
No. 16 of a supplement which was published on 31.1.1984. It
appears there were two more supplements issued subsequently,
i.e., one on 27.11.1984 and the other on 29.1.1985. The
basic roll and the supplement in which the name of the
appellant was found was again published on 29.1.1985. The
basic roll and supplements together constituted one
integrated electoral roll. The certified copy, which was
furnished to the appellant on 8.1.1986, i.e., one day before
the date on which he filed his nomination paper was a copy
made from the said integrated electoral roll. The said
certified copy was marked as Ex. B-1 in the case and the
certified copy which was furnished to him on 10.1.1986 was
marked as Ex. B. The Electoral Registration Officer who was
responsible for preparation and maintenance of the rolls, as
already stated, was the Tahsildar, Pune. He was examined by
the appellant as one of his witnesses in the case. We feel
that it is necessary to refer to some portions of the
deposition of the Tahsildar, i.e., the Electoral
Registration Officer. He stated:
"The petitioner was furnished the extract (Exh. B-1).
Exh. B-l is the extract from the electoral list as was
current on the date this extract was given to him. I see
Exh. D which is the certified copy of extract furnished to
the petitioner on 10.1.86. These two extracts are identical
except that the final publication date as stated in Exh. B-1
is 31.1.84 and 19.1.85 in Exh. D.
In 1985 the entire list of voters was not again got
printed.
The date of final publication (29.1.85) as finding place
in Exh. D is brought to my notice. On 29.1.85 it was the
supplement along with the original list that was published.
PG NO 1075
Three suplements were published on the following dates
first on 31.1.84 the second on 27.11.1984 and the third on
29.1.1985. Exh. B-1 was furnished to the petitioner by me on
8.1.86 after taking into consideration the publication of
these supplements also. So also Exh. D.
Cross-examination by R-3 and 4 declined.
Cross-examination by Shri Vyas for R. 5:
It is correct that the voters list was finally published
on 29.1.85, I am referring to Shivaji Nagar Constituency
voters list. It is not true that on the extract Exh. B-1 I
put the date of final publication on 31.1.84, because I did
not take into consideration the later publication of
27.11.84 and 29.1.85 .........."
(emphasis added)
From the deposition of the Tahsildar (Electoral
Registration Officer) the following points emerge:
(i) Ex. B-1, the certified copy, which was produced
along with the nomination paper was the extract from the
electoral roll as was current on the date the said extract
was given to him.
(ii) In 1985 the entire electoral roll was not again got
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printed.
(iii) The certified copy which was produced along with
the nomination paper was furnished to the appellant on
8.1.1986 after taking into consideration the publication of
the supplements on 31.1.1984. 27.11.1984 and 29.1.1985.
(iv) The basic roll along with the supplement or
supplements was published on 31.1.1984 and also on
29.1.1985.
In answer to a question put in the cross-examination by
the learned counsel for the Returning Officer, the Electoral
Registration Officer stated that it was correct that the
voters list was finally published on 29.1.1985. He also
stated that it was not true that on the extract Ex. B-1 he
put the date of final publication as 31.1.1984 because he
did not take into consideration the later publications of
27.11.1984 and of 29.1.1985.
PG NO 1076
The appellant, who was a citizen of India and was
registered as a voter applied to the Electoral Registration
Officer of the Shivaji Nagar Assembly Constituency bona fide
for a certified copy of the relevant entry in the electoral
roll containing his name for purposes of producing it before
the Returning Officer under section 33(5) of the 1951 Act. A
certified copy was accordingly prepared by the officer
concerned and it no doubt stated that the supplement in
which the appellant’s name appeared had been last published
on 31.1.1984. It did not say that it was not published
subsequently. But, on the other hand in the evidence of the
Electoral Registration Officer it is stated that even on 29
1.1985 both the original electoral roll and the supplements
had been published. It is not the case of any party that
there was another electoral roll which was defunct from
which the certified copy produced by the appellant along
with the nomination paper had been prepared. There was only
one electoral roll in the office of the Electoral
Registration Officer of the Shivaji Nagar Assembly
Constituency. It consisted of the basic roll and the three
supplements. The name of the appellant. as already stated
was in the first supplement which had been published on
31.1.1984 for the first time. There is also no evidence in
this case showing that the name of the appellant had been
deleted from the electoral roll subsequently on account of
any disqualification incurred by him as provide by section
16 of the 1950 Act.
We have not been informed that there is any prescribed
form in which a certified copy of the entries in the
electoral roll should be furnished when an application is
made for such certified copy for purposes of section 33(5)
of the 1951 Act. There is no prescription requiring the
copy to state the several dates on which the basic roll or
the supplement from which the copy is prepared had been
published. The certified copy that was produced before the
Returning Officer along with the nomination paper was less
than 24 hours old when it was presented before the Returning
Officer. It is not a certified copy obtained in 1984 that
was being produced in 1986 before the Returning Officer. No
candidate had raised any objection to the nomination paper
of the appellant. The objection, however had been raised by
the Returning Officer himself on the 9th January, 1986 when
the appellant filed his nomination paper along with the
certified copy which he had obtained on 8.1.1986. As a
subsequence of the said objection he had to rush back to
Pune again to obtain another certified copy. He appeared
before the Returning Officer again by about 1.00 P.M. on the
date of the scrutiny and produced the other certified copy.
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PG NO 1077
The Returning Officer, who commenced the scrutiny of the
nomination paper at 11 A.M. on 11.1.1986 proceeded to reject
the nomination paper of the appellant on the ground that the
certified copy of the relevant entry in the electoral roll
could not be treated as a certified copy of an electoral
roll which was in force at that time. Under the proviso to
section 36(5) of the 1951 Act it is provided that in case an
objection is raised by the Returning Officer or is made by
any other person the candidate concerned may be allowed time
to rebut it not later than the next day but one following
the date fixed for scrutiny, and the Returning Officer shall
record his decision on the to which the proceedings have
been adjourned. The Returning Officer did not choose to wait
even for a few hours on 11.1.1986 to give a chance to the
appellant to make his plea that what had been produced
before him along with the nomination paper was a certified
copy which could be acted upon or to produce another
certified copy which in fact he did produce at 1 P.M. on
11.1.1986 before the Returning Officer, even before the
final list of candidates, who had filed valid nomination
papers, was published on the notice board The Returning
Officer had acted on his own information in rejecting the
nomination paper of the appellant. namely, that there was a
revision in 1985 and that the certified copy which had been
produced was from an electoral roll which had become
defunct. If that was so. he should have secured the
necessary material from the concerned Electoral Registration
Officer and placed it before the appellant before rejecting
the nomination paper.
It is no doubt true that the electoral right is a
statutory right and a person who wishes to contest an
election should comply with the law applicable to elections
strictly. But in the instant case we that there is no
default at all on the part of the appellant. He had actually
produced before the Returning Officer a certified copy which
had obtained within less than 24 hourse from the Election
Registration Officer of the constituency where he was
residing and that he had not done anything to mislead the
Returning Officer. Unless the certified copy produced before
the Returning Officer itself on the face of it showed that
the electoral roll from which a certified copy had been
prepared had been substituted by another electoral roll. the
Returning Officer was not justified in not treating the
production of the certified copy prepared on 8.1. 1986 as
sufficient compliance under section 33(5) of the 195l Act
particularly having regard to the close proximity between
the date of preparation of the certified copy and the date
of the production of the certified copy. In the
circumstances unless there was any evidence to the contrary
the Returning Officer should have treated the certified copy
PG NO 1078
produced before him as a certified copy of the electoral
roll for the time being in force of the constituency to
which it related. It is clear from the evidence of the
Tahsildar that there was no other roll which had taken the
place of the supplement in which the name of the appellant
had been entered. Even the second copy supplied on 10.1.1986
had been prepared from the same supplement. Both the first
certified copy and the second certified copy were copies of
the same original. Sub-section (7) of section 36 of the 1951
Act lays down a rule of evidence. It says that a certified
copy of an entry in the electoral roll for the time being in
force of a constituency shall be conclusive evidence of the
fact that the person referred to in that entry is an elector
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for that constituency, unless it is proved that he is
subject to a disqualification mentioned in section 16 of the
1950 Act. In the absence of any such objection on the part
of any other candidate or any information which the
Returning Officer may have had with regard to the
disqualification of the appellant, the Returning Officer
should have in the circumstances of this case proceeded to
accept the certified copy produced along with the nomination
paper and acted upon it. We hold that the certified copy
produced along with the nomination paper satisfied the
requirement of section 33(5) of 1951 Act.
We are of the view that in the circumstances the
appellant who was an innocent person has been denied the
right to contest the election unreasonably. We hold that the
rejection of the nomination paper of the appellant was
improper. It follows that the election of the 1st respondent
should be declared void in view of the provisions contained
in section 100(1)(c) of the 1951 Act. We, therefore, allow
this appeal, set aside the judgment of the High Court and
declare the election of the 1st respondent to the
Maharashtra Legislative Assembly from Jaoli constituency
void.
Having regard to the facts and circumstances of the
case, we feel that the parties must be directed to bear
their own costs both in the High Court and in this Court.
R.S.S. Appeal allowed.